NESN

Prosecution’s Mishandling of Roger Clemens Perjury Trial Has Been Nearly Unfathomable

I have heard it called the courtroom equivalent of Bill Buckner. U.S. District Judge Reggie Walton claimed a first-year law student wouldn't make the mistake the prosecution did. 

It took the government more than two and a half years to build a case against Roger Clemens, and now a mistrial has been declared less than two full days into testimony.

Is something more stunning even fathomable?

Wait, it gets better. There is a chance, according to legal types who are chiming in around the country, that there will not be any chance for a new trial. So Roger Clemens, who walked free on Thursday, may never be tried for lying to Congress about his use of performance-enhancing drugs. He may never be tried for the cotton balls and needles stained with his DNA and steroids that the prosecution talked so much about in its opening statement. He may never be tried for evidence the government spent years gathering –- evidence it did not have against Barry Bonds. He may never have to listen to former teammate and friend Andy Pettitte testify against him.

Our NESN legal analyst, Harry Manion, called Clemens a "very lucky Texan," and told me that's exactly what he believes will happen.

What a victory that would be.

Manion explained how the double jeopardy clause comes into play in this case like this.

"Case law says if a mistrial is caused by prosecutorial misconduct, that triggers the double jeopardy clause," he said. "Because he was at jeopardy when the jury sat, this may well be violative of his double jeopardy rights. If the judge finds it was prosecutorial misconduct, you can't try him again.

"You blew it. You lose."

The prosecution will have to argue that the inclusion of the Andy Pettitte's wife's affidavit -– read by Rep. Elijah Cummings, D-Md., in a video shown to the jury Thursday –- was inadvertent. Judge Walton had already clearly stated that Laura Pettitte's statements were not admissible in the trial. That will be no easy task, according to Manion.

"When all of this is shaken and baked," Manion said, "I think this very serious judge is going to say, 'Dismissed Mr. Clemens. You're a free man. Stay in touch. See you later.'"

It is difficult to fathom how the prosecution could have made a mistake of this magnitude in a case shining in an enormous national spotlight. For a judge to admonish that a first-year law student wouldn't make such a mistake sums it up. And now, whether you were for or against the time, manpower and money spent investigating Roger Clemens, the lasting story will be that it was the government's own missteps that resulted in all of that time, manpower and money going to waste.

Prepare yourself. Another bombshell could be coming on Sept. 2, when a hearing will be held to determine whether or not to hold a new trial.